Transfer Petition (Criminal) No.53 of 2014 & 58 of 2014

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 14TH DAY OF AUGUST 2014/23RD SRAVANA, 1936** **Tr.P(Crl.).No. 53 of 2014** **---------------------------------** **CC 1119/2013 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM** **-------------** ## **PETITIONER/ACCUSED:** **---------------------------------** **SINU PRAKASHAN, AGED 35 YEARS, W/O PRAKASHAN, KALATHILPARAMBIL HOUSE, NADUVILE VILLAGE, VAIKOM TALUK, ERNAKULAM (DIST).** **BY ADVS.SMT.K.DEEPA (PAYYANUR) SMT.AMBILY (PREMKUMAR)** ## **RESPONDENTS/STATE & COMPLAINANT:** **-----------------------------------------------------------** ## **1. STATE OF KERALA,** **REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN:682031.** **2. SREEKANTH V., AGED 32 YEARS,** **S/O VISWANATHAN POTTI, SREERAGAM HOUSE, EROOR SOUTH (PO), THRIPUNITHURA, KOCHI PIN:682 306.** **R1 BY PUBLIC PROSECUTOR SMT.P.MAYA R2 BY ADV. SRI.C.P.UDAYABHANU** **THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 14-08-2014, ALONG WITH TPCR. 58/2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Tr.P(Crl.).No. 53 of 2014** ## **---------------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES** **----------------------------------------** **ANNEXURE I: COPY OF THE COMPLAINT FILED BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE, ERNAKULAM AS CC.1119/13 AGAINST THE PETITIONER** **ANNEXURE II: COPY OF THE REPLY NOTICE SENT BY THE PETITIONER THROUGH HER COUNSEL** **ANNEXURE III: COPY OF THE COMPLAINT FILED BY THE PETITIONER AS CC.1090/13 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE VAIKOM.** **ANNEXURE IV: COPY OF THE COMPLAINT IN ST.57/13 BEFORE THE JFCM VAIKOM FILED AGAINST THE PETITIONER BY ONE MR.SURESH BABU** **ANNEXURE V: COPY OF THE COMPLAINT IN ST.58/13 BEFORE THE JFCM VAIKOM FILED AGAINST THE PETITIONER BY ONE MR.REMESH P.DAS.** **ANNEXURE VI: COPY OF THE COMPLAINT IN ST.3107/13 BEFORE THE JFCM VAIKOM FILED AGAINST THE PETITIONER BY ONE USHA KUMARI.** **RESPONDENTS' ANNEXURE** **----------------------------------------** **NIL.** **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** K. RAMAKRISHNAN, J. -------------------------------------------------------------------------------Transfer Petition (Criminal) No.53 & 58 of 2014 -----------------------------------------------------------------------Dated this the 14[th] day of August, 2014 ## O R D E R These two petitions were filed by the respective accused in C.C.No.1119/2013 and 526/2013 pending before the Additional Chief Judicial Magistrate Court, Ernakulam, to transfer those cases to the Judicial First Class Magistrate Court, Vaikom, under Section 407 of the Code of Criminal Procedure. 2. The common case of both the petitioners in these respective petitions is that, 2[nd] respondent in both these cases have filed private complaints against the respective petitioners, alleging that, they have issued the disputed cheque in discharge of the liability, which when presented were dishonoured and in spite of notice issued, they have not paid the amount and thereby they have committed the offence punishable under Section 138 of the Negotiable Instruments Act. The respective complainants filed private complaint against the petitioners before the 2 Tr. P (Crl.).53 & 58 /2014 Additional Chief Judicial Magistrate Court, Ernakulam, and after preliminary enquiry, the learned magistrate has taken cognizance of those complaints as C.C.Nos.1119/2013 and 526/2013 respectively under Section 138 of the above said Act and they are now pending before that court. According to the petitioners, they have not issued any cheque to the complainant and there are other litigations pending between the parties before Vaikom court also and misusing the cheques, some of the complainants before the Vaikom court filed these complaints against the petitioners. Further, cheque in both these cases were issued drawn on Federal Bank Ltd., Vaikom Branch and the witnesses to be examined also from Vaikom. Since number of other cases was pending before the Vaikom Judicial First Class Magistrate Court, it is just and proper that, these two cases also to be transferred to the Judicial First Class Magistrate Court, Vaikom, so that, it will be convenient for them to conduct the case. Further in both the cases, they have also stated that, they are females and they will have to travel 3 Tr. P (Crl.).53 & 58 /2014 from Vaikom to Ernakulam, to conduct the case. So they filed the above application, seeking the following relief: ## in Tr.P.(Crl.) 53/2014 “It is prayed that this Hon'ble Court may be pleased to pass an order directing to transfer CC.No.1119/2013 on the file of the Additional Chief Judicial Magistrate, Ernakulam, to Judicial First Class Magistrate, Vaikom”. ## in Tr.P.(Crl.) 58/2014 “It is prayed that this Hon'ble Court may be pleased to pass an order directing to transfer CC.No.526/2013 on the file of the Additional Chief Judicial Magistrate, Ernakulam, to Judicial First Class Magistrate, Vaikom”. 3. Heard the learned counsel for the petitioner in both the cases and the learned counsel appearing for 2[nd] respondents and the learned Public Prosecutor as well. 4. The learned counsel appearing for the petitioners in both the cases submitted that, in view of the dictum laid down by the Hon'ble Supreme Court in the recent decision in, **Dashrath Rupsingh Rathod v. State of Maharashtra (2014 (3) KHC 362)** , even otherwise the cases have to be transferred and returned to be presented 4 Tr. P (Crl.).53 & 58 /2014 before the Vaikom court, within whose jurisdiction the bank in which the cheques were drawn were issued. Further being female, they are finding it difficult to travel from Vaikom to Ernakulam, to conduct the case as well. 5. The counsel for 2[nd] respondents in both the cases submitted that, the reasons stated by the petitioners are not a ground for transfer. Further the decision relied on by the counsel for the petitioner is having only prospective in nature. 6. It is an admitted fact that, the 2[nd] respondent in both these petitions have filed a private complaints against the petitioners in both these case before the Additional Chief Judicial Magistrate Court, Ernakulam, alleging offence under Section 138 of the Negotiable Instruments Act and after preliminary enquiry, the learned magistrate had taken the cases as C.C.1119/2013 and C.C.526/2013 against the respective petitioners and that is pending before that court. It is also an admitted fact that, the impugned cheque in both these cases were drawn on 5 Tr. P (Crl.).53 & 58 /2014 Federal Bank Ltd., Vaikom Branch, in which the petitioners were maintaining account. These complaints were earlier filed on the basis of the decisions of the Hon'ble Supreme Court on this aspect that, the case can be filed in five places mentioned in those decisions. But that decision was reconsidered by the Hon'ble Supreme Court by a larger Bench in **Dashrath Rupsingh Rathod v. State of Maharashtra and Another** cited (supra) and had categorically declared that, the place where the drawee bank is situated alone will have jurisdiction to entertain the complaint under Section 138 of the Negotiable Instruments Act. In that decision, in paragraph 20 of the decision, the impact of the judgment and the procedure to be followed has been reiterated, which reads as follows: “20. We are Quite alive to the magnitude of the impact that the present decision shall have to possibly lakhs of cases pending in various Courts spanning across the country. One approach could be to declare that this judgment will have only prospective pertinence, i.e. applicability to Complaints that may be filed after this pronouncement. However, keeping in perspective the hardship that this will continue to bear on alleged accused/respondents who may have to travel long distances in conducting their defence, and also mindful Tr. P (Crl.).53 & 58 /2014 6 of the legal implications of proceedings being permitted to continue in a Court devoid of jurisdiction, this recourse in entirety does not commend itself to us. Consequent on considerable consideration we think it expedient to direct that only those cases where, post the summoning and appearance of the alleged Accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881, will proceeding continue at that place. To clarify, regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the Complaint will be maintainable only at the place where the cheque stands dishonoured. To obviate and eradicate any legal complications, the category of Complaint cases where proceedings have gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred by us from the Court ordinarily possessing territorial jurisdiction, as now clarified, to the Court where it is presently pending. All other Complaints (obviously including those where the accused/respondent has not been properly served) shall be returned to the Complainant for filing in the proper Court, in consonance with our exposition of the law. It such complaints are filed/refilled within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred”. 7. So it is clear from the above decision that, cases were the evidence has not been started, the magistrates were directed to return the complaint to the complainant to present before the court, within whose jurisdiction the drawee bank is situated, within thirty days from the date of return and if it is represented before the Tr. P (Crl.).53 & 58 /2014 7 proper court within that time, it will be deemed to have been filed within time. So it is clear from this that, the Additional Chief judicial Magistrate Court, Ernakulam, is not having jurisdiction to retain the case in that court, as it is seen from the reports submitted that, the evidence has not be taken in this case and only plea was recorded and it is posted for evidence of the complainant. So under such circumstances, without going into other aspect, this court feels that, it is a fit case where the cases have to be transferred to the Judicial First Class Magistrate Court, Vaikom, within whose jurisdiction the drawee bank is situated where alone the complaint can be maintained by the complainant. So the petitions are allowed and C.C.Nos.1119/2013 and 526/2013, now pending before the Additional Chief Judicial Magistrate Court, Ernakulam, transferred to Judicial First Class Magistrate Court, Vaikom. The Additional Chief Judicial Magistrate is Ernakulam, is 8 Tr. P (Crl.).53 & 58 /2014 directed to transfer the records to the Judicial First Class Magistrate Court, Vaikom, immediately. Parties are directed to appear before the Judicial First Class Magistrate Court, Vaikom, on 30.09.2014. If the parties did not appear or the records from Additional Chief Judicial Magistrate Court, Ernakulam, were not received by the transferee court, then the learned magistrate is directed to issue notice to the parties afresh, after re-numbering the same in that court. With the above direction and observation, the transfer petitions are disposed of. Office is directed to communicate this order to both the courts, immediately. Sd/- ## **K. RAMAKRISHNAN, JUDGE** // True Copy // P.A. to Judge ss